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THE BANGALORE DRAFT CODE OF JUDICIAL CONDUCT CIVIL LAW COMMENTARY - SOME OBSERVATIONS The Hon Justice Michael Kirby AC CMG* GENERAL COMMENTS 1.1 Finding consensus: The commentaries of the judges from civil law countries on the Bangalore Draft Code of Judicial Conduct (the Bangalore Draft) are invaluable. I regret that my obligations to the International Bioethics Committee prevent my participation in the meeting in the Hague. There are some significant differences between the approaches of the judicial group, all comprising judges from countries substantially or wholly of the common law tradition and judes of the civil law tradition. If the aim is an international draft acceptable to both (and any other) traditions, it is self-evidently necessary: To give way in essentials; and To confine the Bangalore Draft to truly essential items upon which consensus can be reached. * Justice of the High Court of Australia. One-time Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia. Rapporteur of the International Judicial Group. 2. 1.2 Title of document: The commentaries on the "Code", as a title for the Bangalore Draft, are not unexpected. Many of the commentators in common law countries have made the same point. In such countries "code" also means a self-contained document of an imperative nature containing all of the relevant rules on the particular subject. There were many objections by judges in Australia to the use of the word "code". Especially because of the generality of some of the "principles", it seems highly desirable that the word "code" should be dropped. Instead, I would suggest "guidelines". There is a precedent for this. The OECD Guidelines on Privacy proved extremely influential in the development of national laws on that subject. The word is softer, less coercive and less self-implementing than "code". At the upcoming meeting of the Judiical Group in Colombo, the word "code" should be dropped in light of the civil law comments. 1.3 The core values: There are some very telling comments, from the civil law perspective, on the key values to be attained and the ordering of those values. These are also comments that have been made in some common law countries. For example, beginning the Bangalore Draft with the value of "Propriety" now seems inappropirate. There are more fundamental values than this. A similar point was made in Bangalore by Justice Claire l'Heureux Dubé (Canada). This criticism should also be accepted and the identification and order of the basic values should be reassessed. As many of the comments have pointed out, there is overlap between several of the values. Thus, there is much overlap 3. between impartiality, independence and integrity. The question is what are the truly "core" values to be included in the final document. 1.4 Back to UN basics: Various suggestions are made by the civil law commentators. Some of them are mutually inconsistent. Possibly the best guidance for us all is to return to the basic statement of the requirements of a judge as set out in Article 14.1 of the International Covenant on Civil and Political Rights (ICCPR). Not all countries are participants in the European Convention system. Not all countries have regional human rights systems (There is not in the Asic Pacific). Accordingly, the ICCPR is probably the closest we all come to a basic core text. Art 14.1 states: "1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal estabilshed by law …". In light of the civil law comments on the proliferation and overlap of the core values and their ordering, it might be worth reconsidering the draft and bringing the subsidiary values under the three fundamental values mentioned in the ICCPR, namely competence, independence and impartiality. At least if we stick to them and keep the Bangalore Draft organised in accordance with the ICCPR, we are building upon, and elaborating, the most fundamental of United Nations human rights instruments. 4. 1.5 Prosecutors and judges: A number of the civil law commentaries urge the incluison of reference to prosecutors. I appreciate that in civil law countries the prosecutors have a special role in the administration of justice. Also in common law countries, prosecutors have special and independent functions. They are not mere servants of the State. They have independent duties to perform. But they are strictly independent of the judicial branch. When I served as Special Representative of the Secretary-General for Human Rights in Cambodia I found that common law human rights NGOs were shocked by the special status accorded to prosecutors. They were scandalised that prosecutors had a higher bench and were not consigned to equality in the geography of the courtroom with the accused. This would be an irreconcilable difference between common law and civil law traditions. So far as the theory of the common law is concerned (not always reflected in past practice at least), prosecutors are simply another litigant. And the courts have little whatever to do with prosecutorial decisions, very rarely interfering in the exercise of prosecutorial discretions. If we are to find a unviersal draft, it will be necessary to treat the competence, independence and integrity of prosecutors separately from the guidelines governing judicial officers (judges and members of independent tribunals). 1.6 Implementation: There are some wise comments on the so-called value of implementation and accountabilitiy (Value VII). These point to the great differences between different countries in the implementation of principles of judicial integrity. A similar problem arose twenty years ago when I chaired the OECD Committee on Privacy. It was possible to 5. secure agreement on the basic guidelines. It was impossible to secure agreement on implementation of those guidelines. Putting it generally, the civil law countries favoured administrative procedures and detailed regulation. The common law countries favoured implementation by independent courts and tribuanls with minimal bureaucracy. In the end, the guidelines accepted that implementation would follow the traditions of each country. So it has proved. The result has been successful. The core values have been held in common but Europe (and the United Kingdom) have tended to favour data protection authorities. Common law contries have tended to favour judicial remedies. Because the disciplining of judges is very commonly provded for in national constitutions and in detailed regulation, it may be prudent, in the light of the civil law commentaries, to delete the supposed value of implementation and to include references to that subject in an accompanying document instead of in the Bangalore Draft itself. 1.8. Explanatory memorandum: This leads to a conclusion that some of the detail of the present Bangalore Draft should be reduced. There is a much greater chance of securing consensus internationally if we stick to the truly core values. This does not mean that the work already done will be lost. The Bangalore Draft could be accompanied by an explanatory memorandum. This would supplement the core values with detailed commentary on: The position under judicial codes etc of different countires; The specific subtopics that arise under the core values; 6. The particular issues of implementation alongside the basic core values; and The ways in which different countries go about implementing the values. So long as the implementation is accessible, independent, fair and effective, we should not be too concerned about national differences. It is very difficult to change a country's constitution. That is a reason for avoiding unnecessary provisions in the Bangalore Draft that challenge constitutional requrements that tend to proliferate in the subject of judicial standards and discipline. 1.9 National specificities: Another point that comes out of the civil law comments is the specificity of the needs of some countries. specificity may arise from the recent history of such countries. Such For example, countries that have had recent exposure to totalitarian political regimes with subsequent difficulties of civil order, may have particular requirements, eg to prohibit association with political parties or to prohibit particular activities such as gambling by judes. We must aim for a draft that allows flexibility essential to address specific problems that arise in these areas. 1.10 Developing/developed countries: A similar need for flexibility arises from the great range and variety of the judicial office in different parts of the world. One of the sub-texts refers to village courts which are common in many developing countries but not in developed or European countries. Yet if a very large proportion of disputes is handled before 7. such courts, any guidelines on judicial conduct must be wide enough to include them. The solution again will probably be to delete express mention of village courts in the guidelines themselves and to include reference to this topic in the accompanying explanatory memorandum. PARTICULAR COMMENTS 2.1 Preamble: The suggestion is that this be reduced. I agree. The reference to the codes of other countries could be transferred to the explanatory memorandum. We should anchor our draft in universal instruments, particularly the ICCPR. There is an interesting comment on the emergence of European judicial systems from the protective shell of the administrative state. The common law systems are emerging from a different shell, possibly because of the same stimulus of universal human rights. Their shell was one of self-satisfaction, complacency and inadequate scrutiny of the State and its actors. So far as countries of the Commonwealth of Nations are concerned, they are not influenced by "American programmes". Their judiciary follows a strong tradition. But the earlier United States acceptance of a Bill of Rights has led in that country to